Tag: federal

President urged to make federal hiring fairer — but is the “ask” enough to get the right result?

A coalition of national advocacy organizations has again urged President Obama to implement a robust federal hiring policy to give people with a criminal record a fair chance to compete for federal agency and contractor jobs.[1]  In an open letter dated July 20, the coalition called upon the President to issue an executive order requiring employers to conduct a criminal records check only after a conditional hiring offer has been made, and to adhere to current EEOC guidance on considering the results of a records check. The administration’s recent rhetoric indicates that it may be receptive to the coalition’s proposed reforms. On July 14, the President explicitly endorsed so-called “ban-the-box” policies in his speech on criminal justice reform at the NAACP annual convention: Let’s follow the growing number of our states, and cities, and private companies who’ve decided to ban the box on job applications so that former prisoners who have done their time and are now trying to get straight with society have a decent shot in a job interview. According to the coalition, the Obama administration has endorsed fair hiring policies since at least last spring when the My Brother’s Keeper Task Force called for banning the box. Last year, the Attorney General’s Reentry Council urged that “mak[ing] the federal government a model employer” should be a key point of the federal reentry agenda. The July 20 letter challenges the President to make good on this rhetoric: It is past time for your administration to make these powerful pledges a reality by leveraging the federal government’s considerable resources to reform the hiring process of workers employed by federal contractors and federal agencies, which account for over 20 percent of the entire U.S. workforce. The specific reform proposals in the July 20 letter incorporate, in broad strokes, the more detailed agenda outlined in a report published by NELP this past January.  But are these proposals, even if fully implemented, enough to make fair hiring a reality in the federal workplace? While ban-the-box policies have been adopted by numerous states, municipalities, and private entities, they have not yet been shown to be effective in limiting consideration of criminal records.  Some fear that they simply delay inevitable rejection.  As one woman remarked following a series of rejections based on late-stage records checks, “states with ban-the-box laws didn’t really ban those boxes; they just moved them to a different time in the hiring process.” A recent court case confirms anecdotal evidence long suggesting that employers who reject applicants with criminal histories will do so regardless of when that history surfaces.  In some cases rejection may be mandated by insurers or regulators.  If that is indeed the case, then ban-the-box policies will encourage hiring only if they are accompanied by policies that limit consideration of the record itself. Requiring federal agencies and contractors to adhere to EEOC enforcement guidance on consideration of criminal records would go a long way toward bridging that gap, but it is unlikely to close it. The EEOC guidance requires employers to conduct an individualized assessment of each applicant that takes into account the age and nature of an offense, its relationship to the job sought, and evidence of rehabilitation.  Rejection based on an applicant’s criminal history is permissible only if “job-related and consistent with business necessity” — a determination that is ultimately up to the employer. As a practical matter, it is hard to go behind an employer’s determination not to hire a particular individual, as years of Title VII litigation demonstrate.  Is a five year old shoplifting conviction related to a job where a person has access to a company supply closet?  Is a 10 year old DUI charge related to a job that does not requires driving?  One that does?   As long as employers can make an argument for job relatedness where an individual applicant is concerned, a hiring policy incorporating the EEOC guidance is likely to invite circumvention. Granted, the more detailed reforms proposed last winter by NELP would create a process that would allow applicants to appeal their rejection as inconsistent with the EEOC guidance, and empower the Office of Federal Contract Compliance to suspend or terminate contracts for failure to adhere to it.  However, unless the entities responsible for hearing appeals and assessing contractor compliance develop rules defining job-relatedness, the standards they use to review employer actions will be no clearer than those the employers are supposed to implement in the first instance. This is not to say that the EEOC guidance cannot serve as a model for an effective fair hiring policy, only that it is not enough without a viable enforcement mechanism. As the coalition says in the letter, “Absent a strong and enforceable policy, federal contractors and federal agencies will continue to violate these basic standards of law and fairness.” [2] Rather than simply appropriate the EEOC guidance, the administration should build on it. Business necessity and job relatedness ought to be touchstones of any fair hiring policy, since they acknowledge that convictions may be disqualifying but only in certain limited situations. Those touchstone concepts can be used to craft clear and enforceable agency-specific rules that clearly define when rejection is appropriate. State legislators have shied away from bright line categories allowing consideration of some records but not others, because hiring decisions so frequently depend upon the totality of facts and circumstances.  For example, New Jersey’s Opportunity to Compete Act began its legislative life with provisions barring consideration of certain dated criminal records, provisions that were omitted just prior to enactment.  Similarly, the ban-the-box law passed in Delaware would have barred consideration of convictions more than ten years old (those provisions did not survive the legislative process either). A case can be made that dated convictions (particularly minor ones) are inherently unrelated to any job, and that discrimination based on such convictions (at least categorical discrimination) is inconsistent with any sort of business necessity.  An agency or contractor should be presumptively prohibited from taking such a conviction into account, and should have a heavy burden of justification if unusual circumstances warrant taking any such conviction into account for a particular job.  If this sort of administrative standard were incorporated into agency-specific rules interpreting the requirements of the EEOC guidance, it would give a federal fair hiring policy the teeth it needs. It would be fantastic news if the President banned the box and mandated adherence to the EEOC guidance tomorrow.  But any celebration ought to be tempered by the practical reality that this would represent only the beginning of an effective federal fair hiring policy. If the President is committed to making the federal government a model employer, he must use his considerable executive authority to build on that foundation with specific policies by which agencies and contractors may be held to account, and procedures for enforcing them. We hope that he is prepared to do so.   [1] The July 20 call follows on the heels of a March 25 letter to the President from the same coalition, joined by nearly 200 additional groups including the Collateral Consequences Resource Center.   [2] The fact that the EEOC guidance is open to such broad interpretation and so difficult to enforce is not surprising given its background. The guidance was not created to aid reentry or improve internal practices.  Rather, its purpose is to help employers comply with a provision of Title VII of the Civil Rights Act that prohibits hiring practices that have a disparate impact on racial minorities and other protected classes, unless those practices are “job related and consistent with business necessity.”  Somewhat ironically, the factors and standards laid out in the EEOC guidance come directly from case law interpreting when an employer may successfully assert a “business necessity” defense — a defense that protects an employer’s right to discriminate against those with criminal records (a class of people not protected by Title VII).   Read more

New federal expungement filing raises stakes for DOJ

Not surprisingly, in the wake of U.S. District Judge John Gleeson’s extraordinary May 21 expungement order in Doe v. U.S., another petition asking for the same relief has now been filed with Judge Gleeson.  Also not surprisingly, since this new petition was filed by one of Ms. Doe’s co-defendants, the underlying facts in this second petition are similar. The second Jane Doe was a more culpable participant in the insurance fraud scheme, and was sentenced to 15 months in prison instead of probation.*  However, she has remained law-abiding since her release more than a decade ago, and like the first Jane Doe she has had a very difficult time getting or keeping a job because of her conviction.  It seems unlikely that the difference in the second Jane Doe’s role in the offense will make a difference in the way the court disposes of her petition. Judge Gleeson has asked the government to show cause why the new petition should not be granted, which should guarantee that it gets attention at the highest levels of the Justice Department.  Argument has been set for September 18.  If there were any doubt about whether the government will prosecute its appeal of the first expungement order, it has probably been dispelled now that the proverbial floodgates appear to be opening. Potential amici should start lining up counsel. One issue that will at some point have to be resolved is what effect the expungement order will have in situations where employment restrictions are imposed by state or federal law, as they frequently are in the health professions for which both Jane Does are trained.  The question whether an expungement (unlike a pardon) will avoid statutory bars to employment is frequently unsettled even where that relief is specifically authorized. It is worth noting that both Jane Does have been repeatedly offered employment and only later terminated after their convictions were discovered during a background check. The fact that no questions were asked at least by some employers before the two women were allowed to start work suggests that the ban-the-box policy recently put in place by Mayor DeBlasio may have a somewhat limited effect, at least where health care jobs are concerned.  The brief accompanying Jane Doe II’s petition points out that her conviction has nothing to do with her performance as a nurse, but the “substantial relationship” standard incorporated into New York’s nondiscrimination law does not appear to have deterred the employers who repeatedly terminated her. Finally, it will be interesting to see if Judge Gleeson engages in as detailed and thorough an analysis of the facts underlying this second petition as he did with the first.  If expungement petitions are now to become routine in the Eastern District of New York, it seems important to find an efficient way of dealing with them.   * The second Jane Doe was re-sentenced in 2012 to 11 months in prison, long after her release, perhaps to avoid her conviction being grounds for mandatory deportation. Read more

DOJ on the fence about appealing federal judge’s expungement order

On June 23, the U.S. Attorney wrote to Judge Gleeson informing him that the government had not yet finally decided whether to appeal his May 21 expungement order in Doe v. United States, and requesting an opportunity to address the scope of the order in the event the appeal is withdrawn.  The government’s letter, reproduced in its entirety below, indicates that the government has been discussing with the FBI how the order might be modified to “effectuate the Court’s intention of precluding the petitioner’s prospective employers from learning of her health care fraud conviction” while also allowing the government “to pursue legitimate law enforcement objectives.”  Those objectives appear to relate to the arrest and prosecution of two of Ms. Doe’s codefendants who remain in fugitive status after more than a decade.  On June 24, in an order granting the government’s request, Judge Gleeson suggested that the government bring any concerns about the scope of the order to the court’s attention even while the appeal is pending. Here is the text of the government’s June 23 letter:  The Office continues to discuss internally whether to pursue an appeal of the Court’s Orders and, given the date (nearly thirty days from entry), the government has filed the notice to preserve its appellate rights. In addition, the government has been consulting with counsel to the Federal Bureau of Investigation concerning proposed modifications to the Court’s May 21 and 22 Orders that will both effectuate the Court’s intention of precluding the petitioner’s prospective employers from learning of her health care fraud conviction and will allow the government to pursue legitimate law enforcement objectives, including the arrest and prosecution of Jean Maxon Lucien and Frantz Mevs, two of the petitioner’s codefendants who absconded following their arrests in the underlying case, United States v. Lucien, 00-CR-1274 (JG), and who remain at large. Because the government has filed a Notice of Appeal to preserve its rights in this case, however, the Court may currently be divested of jurisdiction to modify its May 21 and 22 Orders. Accordingly, the government respectfully requests that, if the Office or the Department of Justice ultimately determines that an appeal is not warranted in this case, the Court afford the government the opportunity to address the scope of the Court’s ordersand the implementation of them as currently written, which would substantially burden the government and have unintended consequences in related criminal proceedings. Here is the text of the court’s June 24 order: The government’s application in its letter dated June 23, 2015 [DE 15], requesting an opportunity to address the scope of the order and its implementation in the event the appeal is withdrawn, is granted. Assuming the correctness of the government’s assertion that I lack subject matter jurisdiction (even concerning the form of the remedial order), I respectfully suggest that the government bring any concerns with regard to the order to the Court’s attention, even while the appeal is pending. At the very least, it would afford this Court the opportunity to provide the Court of Appeals its view regarding the issues raised. If the government is willing to work out a solution that will “preclud[e] the petitioner’s prospective employers from learning of her health care fraud conviction” as long as it will not impede its prosecution of Ms. Doe’s fugitive co-defendants, this will be very good news to the many people with federal convictions who have had similar difficulty in getting and keeping employment but whose criminal cases are entirely resolved.    Read more

27 Senators urge Obama to “ban the box” in federal hiring

A group of 27 U.S. Senators have written to President Obama urging him to implement “fair chance” hiring in federal government employment.   The Senators — all Democrats, led by Sherrod Brown (D-OH) and Cory Booker (D-NJ) — asked the President to issue an executive order directing federal agencies and contractors to postpone inquiry into criminal records until a later point in the hiring process.  The so-called ban-the-box movement in the states has been gaining steam and has been largely bipartisan, with executive orders issued most recently in Georgia and Vermont.  Some of the largest employers in the country, including Walmart, Target, Home Depot and Koch Industries have also stopped asking about prior convictions at the beginning of the job application process. The press release and letter are here.  A January 2015 report from the National Employment Law Project suggests that the details of a presidential executive order may be difficult to work out, given the decentralized nature of federal hiring and the applicability of formal background check requirements to a substantial number of federally-funded jobs.   Read more

Federal fair chance hiring proposal advances

The following note was received today from the National Employment Law Project: We wanted to report back on the exciting progress in support of the federal fair chance hiring initiative, which builds on the momentum from the sign-on letter to the President that your organizations endorsed. On March 25th, representatives from NELP, All of Us or None, PICO National Network and the Southern Coalition for Social Justice met with White House and Labor Department officials to present the letter signed by nearly 200 organizations and urge immediate federal action.  The news about the sign-on letter and the White House meeting was covered in an excellent exclusive that appeared in Politico (check it out) the day of the meeting.  The sign-on letter was also featured in an op-ed by a Florida small business owner (and a member of our partners at the Main Street Alliance) in The Guardian, in an NNPA syndicated story picked up by several news outlets, as well as in a National Law Review story. In addition, thanks to the active engagement of your organizations, the social media around the initiative is also picking up steam. The Facebook image (attached) produced over 60,000 views, and it was shared by nearly 1,000 people.  During the one-hour “tweet storm” on the 25th, there were 250 unique tweets using the #FairChance or #BanTheBox hashtags (a special shout out goes to Danny Glover, whose tweet led the way with most retweets).  In just a few short months, we’re building a serious social media following thanks again to all of you. Based on the feedback we received at the meetings on the 25th, all the support from your organizations, the press and the social media is getting the Administration’s attention – they have made clear that they are taking a serious look at the proposal to issue an Executive Order and Presidential Memo to extend fair chance hiring/ban the box to federal contractors and the federal hiring process.   Now, it’s all about  continuing to build the grassroots and public pressure to move the Administration to act.  Your continued active involvement is critical to the success of the effort. On another positive note, we wanted to also share the news that Virginia Governor McAuliffe issued a strong executive order today extending fair chance hiring to all state positions (and urging the private sector to do the same).  McAuliffe’s action got the attention of Valerie Jarrett, President Obama’s Senior Advisor, who tweeted out her support using the #BantheBox hashtag.  Please take minute to retweet it as well. Thanks again everyone for all your amazing support! We’ll be in touch soon with more details and next steps. Best, Maurice Maurice Emsellem, Director Access and Opportunity Program National Employment Law Project (510) 663-5700 Read more